THE REPUBLIC OF TRINIDAD AND TOBAGO IN THE HIGH COURT...

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THE REPUBLIC OF TRINIDAD AND TOBAGO

IN THE HIGH COURT OF JUSTICE

No. CV 2018-01475

BETWEEN

JEAN MARC ELIJAH JONES

Claimant

AND

THE ATTORNEY GENERAL OF TRINIDAD AND TOBAGO

Defendant

Date of Delivery: 15 May 2020

Before The Honourable Madam Justice Margaret Y Mohammed

Appearances:

Mr Richard Clark Wills instructed by Ms Celeste St Louis Attorneys at law for the Claimant.

Mr Ebo Jones instructed by Mr Ryan Grant Attorneys at law for the Defendant.

JUDGMENT

1. The Claimant is a fisherman of Harding Place, Cocorite. On 16 October 2017 at

approximately midnight, he was walking through a track in the Sea Lots area

whereupon he was apprehended by a group of police officers, and placed under arrest

without being informed of the reasons for his arrest. He was placed in a marked police

vehicle and taken to the Besson Street Police Station (“the police station”). At the

police station, for the first time the Claimant was asked of his particulars such as his

name, age and address. He revealed that he was below the age of eighteen (18) years.

The Claimant asserted that his family members were not contacted and informed of

his arrest and he was placed into a cell occupied by adult males for the first seventy

two (72) hours of his detention. The Claimant also contended that at no time during

or after his arrest and detention, he was provided with an explanation for his arrest

and detention.

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2. On the 19 October 2017, the Claimant’s grandfather, Mr Carver Jones, acting as the

Claimant’s next friend filed an application for a writ of habeas corpus ad subjiciendum

(“the habeas application”). The Defendant was directed to attend court on 20 October

2017 at 10:30am in relation to the habeas application. The habeas application was

served at approximately 9:05am on the 20 October 2017 and the Claimant was

released from custody at approximately 10:15am on the said day with the habeas

application being withdrawn.

3. After the Claimant’s release, he caused a pre-action protocol letter dated 13

December 2017, to be sent to the Defendant seeking damages for his wrongful arrest

and detention. Another letter was sent on 2 February 2018. However, the Defendant

failed to respond.

4. As a result of these events, the Claimant contended that he suffered loss and damages

and he has sought general damages inclusive of aggravated damages for the period of

his wrongful arrest and detention for the period of one hundred and six hours (106)

and fifteen (15) minutes from approximately midnight on Monday 16 October 2017

to approximately 10:15 am on Friday 20 October 2017; exemplary damages; interest

and costs.

5. The Defendant denied the assertions made by the Claimant. The Defendant’s position

was that the Claimant was lawfully detained from approximately 2:25 am on Tuesday

17 October 2017 to approximately 10:15 am on Friday 20 October 2017. The

Defendant also denied the claim for exemplary damages. The Defendant’s version as

set out in the Defence was as follows.

(i) In 2017, Acting Inspector Godfrey Vincent Regimental Number 12686 (“Ag Insp

Vincent”) was investigating a homicide that occurred in the Cocorite area. He

received video footage and photographic evidence identifying three (3)

individuals who allegedly committed the homicide in September 2017.

(ii) On 14 October 2017, PC Allister Williams Regimental Number 19231 (“PC

Williams”) received a telephone call from Ag Insp Vincent seeking assistance in

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locating and detaining three (3) individuals namely, “Orgar,” “Skinnies,” and

Jean Mark in relation to a homicide and firearm related offence that occurred

in the Cocorite area. He forwarded photographs of the three (3) individuals to

PC Williams.

(iii) At about 2:25am on Tuesday 17 October 2017, PC Williams was driving PCZ

595 on patrol in the Sea Lots area with PC Ralph Regimental Number 18892

(“PC Ralph”) and 2 other members of the Trinidad and Tobago Defence Force,

when upon reaching a track they observed a number of men, some of who ran

off.

(iv) PC Williams approached one (1) of the men who matched the description of

one (1) of the three (3) individuals from the information that was sent to him

by Ag Insp Vincent. He was a man of African descent, slim, dark in complexion,

and approximately five (5) feet tall. PC Williams identified himself as a police

officer and informed the man that he was a suspect in a firearm related offence

in the Western Division and cautioned him, and he replied “Huh?”

(v) PC Williams enquired his name to which he said “Jason Scott from St. James.”

He further enquired his name and age and the Claimant said Jean Marc Jones,

aged 19 years from Upper Harding Place, Cocorite. PC Williams requested from

the Claimant a form of identification to confirm same but the Claimant

indicated that he had none. PC Williams also requested a contact number for

a family member to verify the information but the Claimant indicated that he

did not have any contact information.

(vi) PC Williams then cautioned the Claimant and informed him of his rights and

privileges and with the assistance of the other officers conveyed the Claimant

to the police station. They arrived at the police station around 2:40am.

(vii) At around 2:44am, on the said day, PC Williams searched the Claimant and

then handed him over to WPC Cain Regimental Number 19518 (“WPC Cain”)

for safe keeping. WPC Cain then searched the Claimant in the presence of PC

Williams and placed him in a cell by himself in the police station.

(viii) On 17 October 2017, around 3:30pm Sgt Sirju (“Sgt Sirju”) made certain

enquiries and interviewed persons relative to the firearm and homicide

offences which the Claimant was suspected of committing.

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(ix) Ag Insp Vincent with the assistance of Officer Bruno (“PC Bruno”) and officer

Nicholas Nurse Regimental Number 16086 (“PC Nurse”) continued enquiries in

relation to the firearm and homicide offences in Cocorite for which the

Claimant and other persons were persons of interest and/or suspects.

(x) Sometime later Ag. Insp. Vincent received information from PC Bruno that

three (3) persons of interest in relation to the homicide and or firearm offences

in the Cocorite area were detained at the police station.

(xi) At 9:00pm on 19 October 2017, PC Nurse had a conversation with Ag Insp

Vincent concerning the Claimant who was being detained at the police station.

Ag. Insp. Vincent asked PC Nurse to interview the Claimant in relation to the

firearm and homicide offences in the Cocorite area. PC Nurse and PC Ward

Regimental Number 19416 (“PC Ward”) proceeded to the police station on the

said day. They conveyed the Claimant from his holding cell to an enclosed room

at the police station.

(xii) PC Nurse in the presence of PC Ward identified himself to the Claimant and

informed him that he was assisting in the investigation of firearm and/or

homicide offences in the Cocorite area during the period 1 July 2017 and 1

October 2017 in which he was a suspect and/or a person of interest.

(xiii) PC Nurse cautioned the Claimant and informed him of his rights and privileges

to communicate with a friend or family member or an attorney at law of his

choice. PC Nurse then invited the Claimant to participate in the interview,

which would be recorded. The Claimant was unwilling to participate and as a

result, PC Nurse was unable to enquire about any of the Claimant’s particulars

including his age.

(xiv) The Claimant was released from custody without charge on Friday 20 October

2017 at approximately 10:15 am.

THE ISSUES

6. The following are the issues to be determined:

(a) Did PC Williams have reasonable and probable cause to arrest and detain the

Claimant?

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(b) If no to (a) is the Claimant entitled to damages and if so, what is the quantum

to which he is entitled?

7. At the trial, the Claimant gave evidence and he called Mr Shiquille Williams (“Mr

Williams”) as his witness. The Defendant’s witnesses were PC Williams, PC Nurse and

Ag. Insp Vincent.

8. Based on the parties’ respective pleaded cases, there are factual disputes to be

resolved in order to determine the aforesaid issues. In such circumstances, the Court

has to satisfy itself which version of events is more probable in light of the evidence.

To do so, the Court is obliged to check the impression of the evidence of the witnesses

on it against the: (1) contemporaneous documents; (2) the pleaded case: and (3) the

inherent probability or improbability of the rival contentions, (Horace Reid v Dowling

Charles and Percival Bain1 cited by Rajnauth–Lee J (as she then was) in Mc Claren v

Daniel Dickey2).

9. The Court must also examine the credibility of the witnesses based on the guidance

of the Court of Appeal judgment in The Attorney General of Trinidad and Tobago v

Anino Garcia3 where it stated that in determining the credibility of the evidence of a

witness any deviation by a party from his pleaded case immediately calls his credibility

into question.

DID PC WILLIAMS HAVE REASONABLE AND PROBABLE CAUSE TO ARREST AND

DETAIN THE CLAIMANT?

10. The onus is on the police to establish reasonable and probable cause for the arrest

and detention of the Claimant. Narine JA in Nigel Lashley v The Attorney General of

Trinidad and Tobago4 described the onus as:

1 Privy Council Appeal No. 36 of 1897 2 CV 2006-01661 3 Civ. App. No. 86 of 2011 at paragraph 31 4 Civ Appeal No 267 of 2011

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“It is well settled that the onus is on the police to establish reasonable and

probable cause for the arrest: Dallison v. Caffery (1964) 2 All ER 610 at 619 D

per Diplock LJ. The test for reasonable and probable cause has a subjective as

well as an objective element. The arresting officer must have an honest belief

or suspicion that the suspect had committed an offence, and this belief or

suspicion must be based on the existence of objective circumstances, which

can reasonably justify the belief or suspicion. A police officer need not have

evidence amounting to a prima facie case. Hearsay information including

information from other officers may be sufficient to create reasonable grounds

for arrest as long as that information is within the knowledge of the arresting

officer: O’Hara v. Chief Constable (1977) 2 WLR 1; Clerk and Lindsell on Torts

(18th ed.) para. 13-53. The lawfulness of the arrest is to be judged at the time

of the arrest.”5

11. At page 8 Narine JA continued:

“The power to arrest is by its very nature a discretionary one. A police officer

may believe that he has reasonable and probable cause to arrest a suspect, but

may decide to postpone the arrest, while he pursues further investigations. His

exercise of the discretion may be based on the strength or weakness of the

case, the necessity to preserve evidence, or the need to ensure that the

suspect does not abscond to avoid prosecution. The exercise of the discretion

must be considered in the context of the particular circumstances of the case.

The discretion must be exercised in good faith and can only be challenged as

unlawful if it can be shown that it was exercised “unreasonably” … Arrest for

the purpose of using the period of detention to confirm or dispel reasonable

suspicion by questioning the suspect or seeking further evidence with his

assistance is an act within the broad discretion of the arrestor… A police officer

is not required to test every relevant factor, or to ascertain whether there is a

defence, before he decides to arrest… Further, it is not for the police officer to

5 Supra para 14

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determine whether the suspect is in fact telling the truth. That is a matter for

the tribunal of fact.

12. The tort of false imprisonment is established by proof of the fact of imprisonment and

the absence of lawful authority to justify the imprisonment6. In Ramsingh v The

Attorney General of Trinidad and Tobago7 the Privy Council repeated the principles

to determine the tort of false imprisonment as:

“i. The detention of a person is prima facie tortious and an infringement of

section 4 (a) of the Constitution of Trinidad and Tobago;

ii. It is for the arrester, to justify the arrest; that is the Defendant in this case;

iii. A police officer may arrest a person if with reasonable cause he suspects that

the person concerned has committed an arrestable offence;

iv. Thus the officer must subjectively suspect that the person has committed

such an offence; and

v. The officer’s belief must have been on reasonable grounds or as some of the

cases put it, there must have been reasonable and probable cause to make

the arrest;

vi. Any continued detention after arrest must also be justified by the detainer”.

13. Ramsingh reinforced that the onus is on the police to justify the arrest in an action for

unlawful arrest and to establish reasonable and probable cause for it.8 The test is

partly objective and partly subjective9. It is subjective because the arresting police

officer must have formulated a genuine suspicion within his own mind that the

accused person committed the offence. It is partly objective, as reasonable grounds

for the suspicion are required by the arresting officer at the time when the power is

exercised.

6 Clerk & Lindsell on Torts 20 ed at paragraphs 15-23 7 [2012] UKPC 16 at para 8 8 Dallison v Caffery [1965] 1 Q.B. 348 at 370). 9 O’ Hara v Chief Constable of the Royal Ulster Constabulary [1997] 1 AER 129 p 138j –139a) per Lord Hope of Craighead

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14. The Claimant alleged that he was detained at approximately midnight on Monday 16

October 2017 without a warrant. At page 291 of the English judgment O’Hara v Chief

Constable Of The Royal Ulster Constabulary10 the Court stated that:

“The compromise which English common and statutory law has evolved for the

accommodation of the two rival public interests while these first steps are being

taken by the police is twofold: (1) no person may be arrested without warrant (i.e.

without the intervention of a judicial process) unless the constable arresting him

has reasonable cause to suspect him to be guilty of an arrestable offence; . . . (2)

a suspect so arrested and detained in custody must be brought before a

magistrates' court as soon as practicable ..."

15. The power of a police officer to detain a person without warrant exists not only at

common law, but also under statute. These powers are encapsulated in the provisions

of the Police Service Act11 and the Criminal Law Act12.

16. Section 46 of the Police Service Act provides:

“(2) Without prejudice to the powers conferred upon a by subsection (1), a police

officer, and all persons whom he may call to his assistance, may arrest without a

warrant a person who within view of such police officer commits an offence and

whose name or residence is unknown to such police officer and cannot be

ascertained by him.”

17. Section 3(4) of the Criminal Law Act provides:

“Where a Police officer, with reasonable cause, suspects that an arrestable

offence has been committed; he may arrest without warrant anyone whom he,

with reasonable cause, suspects to be guilty of the offence.”

10 [1997] A.C. 286 11 Chapter 15:01 12 Chapter 10:01

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18. The distinction between reasonable suspicion and prima facie proof was examined by

the Privy Council in Shaaban & Ors v Chong Fook Kam & Anor13. At page 1630 of the

judgment Lord Devlin stated:

“Suspicion in its ordinary meaning is a state of conjecture or surmise where proof

is lacking; “I suspect but I cannot prove”. Suspicion arises at or near the starting

point of an investigation of which the obtaining of prima facie proof is the end.

When such proof has been obtained, the police case is complete; it is ready for

trial and passes on to its next stage.”

19. Lord Devlin continued at page 1631:

“There is another distinction between reasonable suspicion and prima facie proof.

Prima facie consists of admissible evidence. Suspicion can take into account

matters that could not be put in evidence at all ... Suspicion can take into account

also matters which, though admissible could not form part of a prima facie case.”

20. The House of Lords in Holgate Mohammed v Duke14 concluded that a police officer’s

use of his discretion to make an arrest where reasonable grounds for suspicion exist

cannot be questioned except on Wednesbury grounds. Lord Diplock explained at page

443 of the judgment that:

“…since the wording of the subsection under which he acted is "may arrest

without warrant," this left him with an executive discretion whether to arrest her

or not. Since this is an executive discretion expressly conferred by statute upon a

public officer, the constable making the arrest, the lawfulness of the way in which

he has exercised it in a particular case cannot be questioned in any court of law

except upon those principles laid down by Lord Greene M.R. in Associated

Provincial Picture Houses Ltd. v. Wednesbury Corporation [1948] 1 K.B. 223…The

first of the Wednesbury principles is that the discretion must be exercised in good

faith. The judge in the county court expressly found that Detective Constable Offin

13 PC appeal No 29 of 1968 14 (1984) 1 AC 4

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in effecting the initial arrest acted in good faith. He thought that he was making a

proper use of his power of arrest.”

21. It was submitted on behalf of the Claimant that he was never told the purpose of the

arrest and all he was told by his attorney at law after his arrest and during his

detention was that officers from the Homicide Bureau wanted to interview him.

22. Counsel for the Defendant argued that PC Williams had reasonable and probable

cause to arrest and detain the Claimant on suspicion of the offence of wounding by

shooting and/ or firearm as it is an arrestable offence under section 12 of the Offences

Against the Person Act15. Section 12 of the Offences Against the Person Act provides

that:

“12. Any person who unlawfully and maliciously by any means whatsoever

wounds or causes any grievous bodily harm to any person, or shoots at any

person with intent to do some grievous bodily harm to any person, or with

intent to resist or prevent the lawful apprehension or detainer of any

person, is liable to imprisonment for fifteen years.”

23. According to the Claimant’s witness statement at the time of his arrest and detention,

he was 17 years old. On Monday 16 October 2017 at approximately midnight, he was

walking through a track in Sea Lots on his way to his cousin, Safiya De Mills’ house.

When he was almost to his cousin’s house, a group of police officers and soldiers were

walking through the track shining lights. He knew PC Williams alone from patrols in

Sea Lots. As the group approached him, PC Williams said “Bingo, yuh under arrest,”

and he then put his hand behind his back, handcuffed and searched him.

24. The Claimant stated that there were at least one other police officer and 2 soldiers, all

of whom were in uniform, with PC Williams but no one identified himself to the

Claimant. He was placed in a marked police vehicle and taken to the police station. He

stated that none of the officers or soldiers asked his name, address or date of birth at

15 Chapter 11:08

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the time of arrest and on the way to the police station. He said that he felt very

confused at what was happening and he was fearful to question the officers and

soldiers.

25. According to the Claimant, at the police station, for the very first time, he was asked

his name and age by one of the police officers. He told the officer his name and that

he was 17 years old. The police officers never asked him for a contact number for his

family members and they did not contact his family members except on the day he

was released. He was placed in a cell, which he shared with adult males for the first

72 hours.

26. The Claimant was cross examined about inconsistencies between his pre-action

protocol letter, his pleadings, his witness statement and the events leading up to and

during his detention.

27. The Claimant stated in cross examination that he lived with his grandfather,

grandmother, aunt and cousin, Mr Williams. He stated that he was walking through

a track in Sea Lots between the hours of 10:00 and 11:00pm and he was arrested

around midnight on Monday 16 October 2017 by a group of soldiers.

28. The Claimant admitted in cross examination that he gave instructions to his Attorney

at law to send a pre-action protocol letter on his behalf and to also prepare the

Statement of Case. He stated that the information in both documents were true and

correct and that there was no difference between his initial instructions and his

witness statement.

29. The Claimant was shown both the Statement of Case and his witness statement by

Counsel for the Defendant. At one stage the Claimant testified that he did not give

instructions for the preparation of the Statement of Case. However, he identified his

signature on both the Statement of Case and his witness statement, which he

admitted were different.

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30. Counsel for the Defendant pointed out to the Claimant that at paragraph 3 of his

Statement of Case, he stated he was apprehended by a group of police officers, only.

He admitted that this was different from his evidence in cross examination where he

stated he was arrested by a group of soldiers. It was pointed out to him by Counsel for

the Defendant that in his pre-action protocol letter he stated that he was

apprehended by police officers. The Claimant denied that he gave those instructions.

He later stated that he was confused with the line of questioning and he agreed with

Counsel for the Defendant that what he stated under cross examination was different

from what was stated in his pre-action protocol letter.

31. The Claimant also testified in cross examination that he knew PC Williams. According

to the Claimant on the day of his arrest, he did not provide any identification or proof

of his age to the officers. He denied that he told PC Williams his name was “Jason

Scott”. He stated that when he was arrested he was walking alone and that nobody

was around at the time. He admitted that he arrived at the police station on Tuesday

morning.

32. The Claimant admitted that he had access to his attorney at law while he was at the

police station and when he met with his attorney at law, the latter provided him with

information about his arrest. He informed his attorney at law that he did not get to

contact his family. His attorney at law informed him that the Homicide Bureau wanted

to conduct an interview with him but there was no interview on 19 October 2017, at

the police station.

33. The Claimant admitted that Mr Carver Jones is his grandfather and that the latter filed

the habeas application. He also admitted that his attorney at law would have had to

provide the information to his grandfather to file the habeas application.

34. The Claimant maintained in cross examination that he was only allowed to make a call

after he was informed he could leave the police station and that a police officer made

the call. He stated that this was the only/first time he gave the phone number to the

police. He explained that he provided the number to the officer when he was leaving

the cell, and the officer told him to provide a contact for someone. He testified that

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he gave his cousin, Mr Williams phone number to a male officer but he saw a female

police officer make the phone call and she told him they got through and someone

was coming.

35. In my opinion the inconsistency in the information between the Claimant’s pre-action

protocol letter, his pleading, his witness statement and his evidence in cross

examination on if he was arrested by police officers or soldiers showed that only this

aspect of his evidence was unreliable.

36. The following aspects of the Claimants’ evidence were credible as they were

consistent and unshaken in cross examination: he was stopped at approximately

midnight on Monday 16 October 2017; when he was stopped he was walking alone;

he did not attempt to run; he was told that he was under arrest; he was not told what

he was being arrested for at the time of his arrest and during his detention; he arrived

at the police station early Tuesday morning; he was only told during his detention by

his attorney at law that the police officer from the Homicide Bureau wanted to

conduct an interview with him; and the officers only requested a contact number of a

family member from him on the day he was released.

37. The Claimant’s witness Mr Williams evidence was that he received a telephone call on

the morning of Friday 20 October 2017 when he was told to make arrangements to

collect the Claimant from the police station. Mr Williams’ evidence corroborated the

Claimant’s evidence that he was only contacted on one occasion by a police officer

from the police station during the Claimant’s detention there and it was immediately

prior to the Claimant’s release.

38. PC Williams was the officer who arrested the Claimant. He stated in his witness

statement that on 14 October 2017, he received a phone call from Ag Insp Vincent, an

Inspector of Crime in the Western Division. Ag Insp Vincent requested his assistance

in locating and detaining three (3) men wanted in relation to firearm offences in his

district. The men were “Orgar,” “Skinnies,” and “John Mark.” PC Williams stated that

the first two (2) names were aliases and the third name he believed to be the real

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name of the suspect. Ag Insp Vincent asked him to seek out these persons, arrest and

detain them as soon as possible. As Insp Vincent then sent him photographs of the

three (3) men.

39. According to PC Williams between the hours of 1:00am and 5:00am on the 17 October

2017, he was driving vehicle PCZ 595 in the company of PC Ralph and two (2) soldiers

while on mobile patrol in the Sea Lots area. They came out of the vehicle and

proceeded on foot onto Production Avenue. While proceeding along Production

Avenue, they entered a track and after walking a short distance, he observed a group

of approximately six (6) men standing facing the party of officers. He observed two (2)

men known to the police as “Skinnies” and “Orgar” run off in a southern direction

along with two (2) other men known to the police. He observed one (1) of the men of

African descent, slim, dark in complexion, approximately five (5) feet tall wearing a

white t-shirt and a black three-quarter pants who fitted the description of a suspect

who would later be known as Jean Marc Elijah Jones, the Claimant.

40. PC Williams stated that the Claimant then tried to run as well but the party of officers

were already so close that he pointed his flashlight at the Claimant and told him

“Police, don’t move do not move.” The Claimant stood still. He then approached the

Claimant and identified himself as a police officer by means of his Police Identification

Card. He told the Claimant that he was a suspect in relation to firearm related offences

in the Western Division and cautioned him and he replied “huh.” He then enquired

from the Claimant what his name was. The Claimant replied “Jason Scott.” He asked

the Claimant where he lived. The Claimant replied St. James. PC Williams stated that

he did not believe the Claimant because he had a photograph of him and his name

from Ag Insp Vincent.

41. PC Williams stated that on further interviewing the Claimant, he admitted that his

name was “Jean Marc Jones” and that he was 19 years old, of Harding Place, Cocorite.

He asked the Claimant for his identification card, however he said “ah ha nun.” He

requested a phone contact number for a family member to confirm this information,

however the Claimant indicated that he had no number. He then informed the

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Claimant of his legal rights and privileges and arrested him. PC Williams said that he

and the party of officers conveyed the Claimant to the police station. While at the

police station, the Claimant requested a phone call to his cousin, Shiquille Williams.

The Claimant provided the phone number 347-1200 and the request for the phone

call was granted.

42. According to PC Williams, he then searched the Claimant and handed him over to WPC

Cain who was the station sentry at the police station on said day. He observed WPC

Cain search the Claimant and place him into the holding cell by himself. He tried to

contact Ag Insp Vincent without success. He then contacted PC Bruno and informed

him that one of the suspects in relation to the firearm offence in the Western Division

was in custody at the police station. PC Bruno told him to place him in the cell and that

he would contact Ag Insp Vincent.

43. PC Williams was cross examined on the information he received from Ag Insp Vincent

prior to the Claimant’s arrest and his actions at the time of and after the Claimant’s

arrest. In cross examination, PC Williams accepted that the first record of the incident

was in the station diary and the last was in his witness statement which was two (2)

years after. He admitted that he did not record the instructions from Ag Insp Vincent

in the station diary or pocket diary. He stated that Ag Insp Vincent spoke to him about

three men and as he did not know any of them, he needed photographs to satisfy

himself as to their identity. He stated that the photographs were on his cellular phone.

According to PC Williams at that time, he did not know the Claimant or if he was

involved in any illegal activity. PC Williams explained that the two (2) other men he

mentioned at paragraph 6 of his witness statement was based on information he

received from Ag. Insp Vincent.

44. PC Williams accepted in cross examination that he spoke only of firearm related

offences in paragraph 4 of his witness statement, but then he spoke of homicide and

firearm related offences in paragraph 6. He explained that Ag. Insp Vincent mentioned

both offences to him. He stated that nothing stopped him from recording the

homicide offence but he explained that there was a policy, which prevented him from

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informing the Claimant of the homicide offence. However, he was unable to indicate

where the policy is found.

45. PC Williams explained that as of 17 October 2017, he had been patrolling the Sea Lots

area for approximately three and one half (3 ½) years and often he interacted with the

residents. He stated that he patrolled 3-4 days a week and in a 12 hour day probably

did two (2) patrols.

46. PC Williams admitted in cross examination that he stated in the Station Diary that he

observed a man of African descent approximately five (5) feet tall standing and at

paragraph 6 of his witness statement he stated that he observed a group of

approximately six (6) men standing facing the party of officers. He maintained that

there were also other men.

47. According to PC Williams, after he questioned the Claimant, the latter attempted to

run off. He explained that he approached and asked the Claimant his name and he

tried to run but he was so close to him that he could not run. PC Williams said he

stated this at paragraph 7 of his witness statement where he told the Claimant “Police,

don’t move don’t move” and where he stated, “The Claimant attempted to run as

well”. PC Williams agreed that he did not state in his witness statement that he had a

conversation with the Claimant prior to the latter attempting to run. He also accepted

that he did not state in the Station Diary that the Claimant attempted to run away.

48. PC Williams stated that the Claimant’s name, full address, and photograph were sent

to him. He accepted that he did not attempt to find out the personal information of

the Claimant such as his name and he admitted that he did not show the Claimant a

photograph to indicate to him that he was aware that the latter’s name was Jean Marc

Jones. PC Williams also admitted in cross examination that when he came across the

Claimant he knew he was going to arrest him but he did not caution the Claimant at

that time, even though he was satisfied, that he was the correct person from the

photographs which were sent to him by Ag Insp Vincent.

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49. PC Williams was shown paragraph 8 of his witness statement. PC Williams stated in

cross examination that he only asked the Claimant his name in the further interview

and the Claimant indicated his name, age and address. PC Williams testified that this

was around 2:25 am and 2:27 am (on the morning of Tuesday 17 October). He also

stated that he recorded this information in the station diary, pocket diary and his

witness statement. He maintained that he requested a phone number for a family

member from the Claimant, to confirm the information the Claimant gave him, and

that the latter told him he did not have any number for any family member. PC

Williams also stated in cross examination that the Claimant only remembered the

telephone number for his cousin when they arrived at the police station which was a

short distance from where the Claimant was arrested and this caused him to form the

opinion that the Claimant was not being truthful earlier when he was asked for a

telephone contact for a family member.

50. PC Williams clarified that he was present when the Claimant furnished a telephone

contact number at the police station. He admitted that he did not state in his witness

statement that the Claimant requested of him to make the telephone call. He also

accepted that it was reasonable that if he was the officer who arrested the Claimant,

the latter would have made the request for the telephone call from him.

51. PC Williams also testified in cross examination, that he made entries in the Telephone

Register of the several attempts he made to contact Ag Insp Vincent but he did not

make a record in the Station Diary. He was unable to recall the respective times he

attempted to contact Ag Insp Vincent and he admitted that he did not produce any

records to the Court of his attempts to contact Ag. Insp Vincent. He stated that his first

attempt was when he arrived at the police station with the Claimant and that all his

attempts to contact Ag Insp Vincent was on the same day the Claimant was arrested.

52. I found PC Williams evidence to be a mixture or credible evidence and untruths. In my

opinion, PC Williams was a witness of truth when he admitted in cross examination

that before Ag Insp Williams spoke to him on the 14 October 2017 he did not know

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the Claimant or that he was involved in any illegal activity. I also accept that Ag Insp

Vincent only spoke to PC Williams about the Claimant being involved in firearm related

offences and not homicide. In my opinion, PC Williams was aware that the nature of

firearm related offences and any homicide are very different and it was more probable

that if he was informed of both by Ag Insp Vincent he would have expressly stated so

in his witness statement.

53. The parts of PC Williams’ evidence, which I found lacking in credibility, are as follows.

His evidence in chief that he asked the Claimant his name on two occasions i.e. when

he first approached him and then when he further interviewed him was undermined

in cross examination since he admitted that he only asked the Claimant his name at

the further interview. Further PC Williams’ evidence that the Claimant was with other

persons just before his arrest was not credible since the earlier account of the incident

set out in the Station Diary stated that the Claimant was alone.

54. PC Williams evidence that the Claimant attempted to run away prior to being arrested

was also undermined as it was inconsistent with the account in the Station Diary and

there was no evidence in PC Williams witness statement about the Claimant running

away. Further PC Williams evidence in chief that he cautioned the Claimant before he

was arrested was undermined in cross examination since he admitted that he failed

to do so even though he was satisfied from the photographs which he had received

from Ag Insp Vincent that he was one (1) of the three (3) suspects. In any event, there

was no evidence from PC Williams that he informed the Claimant at the time of the

arrest of the particulars of the firearm offence he was being arrested for. It was more

probable that PC Williams knew that there is a range of “firearm related offences”.

However, he did not indicate to the Claimant the nature of the offence he was being

arrested for. In my opinion, simply informing the Claimant that he was being arrested

in relation to firearm related offences was absolutely inadequate.

55. Further, PC Williams evidence that he had a photograph of one (1) of the suspects,

which matched the description of the Claimant, was not credible as he failed to

produce a copy of his photograph to corroborate his evidence. Based on PC Williams

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evidence the nature of the offences, which the Claimant was being sought for, were

serious. In my opinion, if this was a serious and important matter it was only

reasonable that PC Williams would have retained a copy of this photograph and

produced it before the Court.

56. In any event, PC Williams basis for concluding that the Claimant was the person in the

photograph provided to him, based on his own evidence was not reliable. According

to PC Williams evidence in cross examination, he did not know the Claimant prior to

the incident. However when he was provided with the names of the suspects, he

believed “Orgar” and “Skinnies” to be aliases but “the third name (Jean Mark)” to be

the real name of the suspect.16. He also stated that he was of the view that the name

Jason Scott was an alias. In my opinion, PC Williams had no reasonable basis in arriving

at those conclusions.

57. Further, PC Williams evidence that he informed the Claimant that he was a suspect

prior to confirming his identity since he had the photograph, which matched the

Claimant’s description, and he knew it was the Claimant again was without any

reasonable evidential basis.

58. Lastly, I did not accept PC Williams evidence that he made several efforts to contact

Ag Insp Vincent on the same day he arrested the Claimant as there was no

contemporaneous record of these efforts in the Station Diary. In my opinion in light of

the serious nature of the offences, if he did so, he would have made a record in the

Station Diary. In any event, PC Williams said he had contacted PC Bruno to pass on this

information to Ag Insp Vincent. However, PC Bruno was not even called as a witness

to corroborate PC Williams’ evidence that such contact was indeed made. The only

reasonable inference, which I can make by this failure to call PC Bruno, is that no such

contact was indeed made.

16 Paragraph 4 lines 3 to 4 of the Witness Statement of PC Williams

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59. PC Nurse stated in his witness statement that on 16 October 2017, he was attached

to the Western Division Task Force, but he was performing duties under a unit

attached to the Inspector of Crime. Around 9:00am on Thursday 19 October 2017, he

had a conversation with Ag Insp Vincent with respect to a person of interest/suspect,

Jean Marc Jones who was detained at the police station. Ag Insp Vincent asked him to

conduct an interview of the Claimant concerning shooting offences, which had taken

place in the Waterhole Road, Cocorite. He went to the police station as soon as he was

instructed by Ag Insp Vincent to do so.

60. PC Nurse stated that he was accompanied by PC Ward to the police station where he

saw the Claimant detained in a holding cell. He and PC Ward conveyed the Claimant

to an enclosed room at the police station. In the presence of PC Ward, he identified

himself as a police officer to the Claimant by means of his Police Service Identification

Card, and he observed PC Ward do the same. He told the Claimant that he was

assisting the St. James CID with respect to reports of shooting with intent and

wounding with intent which had occurred in Cocorite and in which the Claimant was

a suspect. PC Nurse stated that he cautioned the Claimant and informed him of his

legal rights and privileges to communicate with a friend, family member or attorney

at law of his choice. He then invited the Claimant to participate in an interview, which

would be recorded. The Claimant replied that he was not willing to participate in the

interview and the interview was concluded. PC Nurse stated that he never got the

opportunity to ask the Claimant about any of his particulars including his age. The

Claimant was then returned to the custody of the officers of the police station. He

subsequently had a conversation with Ag Insp Vincent and indicated what transpired.

61. PC Nurse stated in cross examination that he knew that the Claimant lived in the

Cocorite area before he spoke with Ag Insp Vincent as in June- July 2016 the Claimant

first came to the attention of the police as a firearm offender. He indicated that he did

not include this information in his witness statement as he did not want to tarnish the

Claimant and that he was not the person to produce documents to substantiate this

aspect of his evidence.

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62. PC Nurse admitted that he did not make any record that he spoke with Ag Insp Vincent

on the 19 October 2017 and that there was no record of him attending to the police

station to interview the Claimant after speaking with Ag Insp Vincent. He accepted

that he did not state in his witness statement the day or time the allegations against

the Claimant arose nor did he give any specific location of the alleged offences at

Waterhole Road, Cocorite.

63. PC Nurse agreed in cross examination that at paragraph 3 of his witness statement he

only referred to shooting offences and he failed to state in his witness statement the

details of the allegations he was to investigate with respect to the Claimant. He

accepted that murder is a specific offence and as such, if that were the subject of

enquiry, he would have mentioned it. He also agreed that the Claimant had a right to

know why he was in custody and that the body of his witness statement did not

indicate the specific information he intended to put to the Claimant.

64. PC Nurse stated that he was aware that he was going to interview the Claimant at the

police station but he did not know the Claimant’s age before speaking with Ag Insp

Vincent. PC Nurse admitted in cross examination that he did not follow good police

practice before seeking to interview the Claimant, as he did not enquire: whether the

Claimant was physically able to give an interview; whether he requested medical

treatment; how long he was in custody; if he had an attorney at law; and the

Claimant’s age. He also did not enquire from the officers at the police station if anyone

knew the Claimant’s age. He indicated that he did not get the opportunity to enquire

if the Claimant understood his rights and privileges and he was unable to recall when

he visited the police station on the 19 October 2017 if he made any enquiries as to

when the Claimant would be released.

65. PC Nurse stated that he formed the impression that the Claimant was not willing to

participate in the interview and not that the Claimant stated that he did not want to

take part in the interview.

66. PC Nurse’s evidence was lacking in credibility and unreliable. PC Nurse made no record

of his visit to the police station when he went with the intention to interview the

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Claimant and he did not even call PC Ward as a witness to corroborate his evidence.

In those circumstances, it is more probable that this visit by PC Nurse to interview the

Claimant did not take place. Further, PC Nurse’s admission in cross examination that

he did not follow proper police practice by failing to make the appropriate enquiries

prior to conducting the interview with the Claimant and that he formed the impression

that the Claimant did not want to be interviewed clearly demonstrated that the whole

attempted interview process was a sham.

67. I found that PC Nurse was not a witness of truth when he stated for the first time in

cross examination that he was aware of the Claimant since June-July 2016 as he was

a firearms offender. In my opinion, this omission of material evidence from PC Nurse’s

witness statement caused me to conclude that PC Nurse was making up his story

during cross examination.

68. Ag Insp Vincent stated in his witness statement that sometime in 2017, there was a

murder in the Cocorite area, which he visited. In September 2017, he received video

footage along with photographs, which assisted in the identification of the individuals

in the footage who allegedly committed the murder. He also received information

from informants and assistance from fellow police officers that these individuals were

involved in a number of shootings in the Cocorite area. Sometime later, he forwarded

the information to Acting Superintendent of Police Martin (“ASP Martin”), a senior

police officer in the Homicide Bureau in the Western Region for his advice on the

matter. He called PC Williams and asked him to detain the said individuals if located.

Sometime after, he received a phone call from PC Bruno who indicated that the three

individuals were detained at the police station. He subsequently contacted PC Nurse

and requested that he conduct interviews into the detention of the said individuals.

PC Nurse subsequently informed him that the three individuals were released from

detention.

69. Ag Insp Vincent testified in cross examination that he knew where the Claimant lived

in Cocorite but not the place he stayed in Sea Lots; the Claimant’s age at the time was

19 years and that he had obtained that information from police informants. He

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conveyed the information to PC Williams via his personal cell phone and verbally and

he passed video footage and photographs to ASP Martin. He said that he only made

the request to PC Williams once in October 2017 and he admitted he did not have a

written record. He stated that he requested PC Williams to locate and detain the

Claimant, as he knew PC Williams worked in the Sea Lots area. He agreed he gave PC

Williams minimum information about the Claimant, which was his name, age and the

address.

70. Ag Insp Vincent stated that he discovered that the Claimant was in custody in October

2017 but he did not indicate the details of the day this information came to his

attention. He testified that he dispatched PC Nurse almost immediately thereafter. He

agreed he did not say whether PC Nurse interviewed the Claimant.

71. Ag Insp Vincent was the person who set the wheels in motion, which led to the

Claimant’s arrest as he provided the information to PC Williams. However, I found his

evidence to be vague, lacking in detail in material aspects and unreliable. Ag Insp

Vincent failed to state in his evidence in chief and in cross examination if he asked PC

Williams to arrest the Claimant for the shooting offences or a murder in the Cocorite

area. Further, there was absolutely no evidence from Ag Insp Vincent how or when he

became aware that the Claimant was in custody at the police station in October 2017.

Based on PC Williams’ evidence he tried and failed to contact Ag Insp Vincent on

Tuesday 17 October 2017. Based on PC Nurse’s evidence Ag Insp Vincent told him to

conduct the interview at the police station. However, there was no evidence from Ag

Insp Vincent’s evidence what offences he told PC Nurse to interview the Claimant

about i.e. the murder or the shooting related offences.

72. From the credible and reliable evidence the objective facts which PC Williams had

prior to the arrest of the Claimant were:

(i) Information from a telephone conversation with Ag Insp Vincent that three

persons “ Orgar”; “Skinnies” and “ John Mark” are to be located and detained

in connection with firearm related offences in the Cocorite area; and

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(ii) Information from Ag Insp Vincent that the three (3) persons had fled to the

Port of Spain area after the incident in the Cocorite area.

73. In my opinion, it was not probable that a reasonable officer in the same position as PC

Williams, in possession of the aforesaid objective facts would have formed the

opinion, when he saw the Claimant in the Sea Lots area, that he was one (1) of the

persons which Ag Insp Vincent spoke to him about in relation for the firearm related

offences in the Cocorite area. PC Williams had no evidence immediately prior to

arresting the Claimant that his name was Jean Mark. The Claimant’s consistent and

unshaken evidence was that the first time he gave the police officers his name and

age was at the police station, which was after he was arrested. PC Williams also had

no other means of identifying the Claimant as one (1) of the three (3) men Ag Insp

Vincent had spoken to him about.

74. Therefore, I find that PC Williams had no reasonable and probable cause to arrest the

Claimant at the time.

75. While I accept from the Claimant’s admission in cross examination that he was able to

meet with Attorney at law and the latter informed him that officers from the Homicide

Bureau wanted to interview him, in my opinion this does not assist the Defendant’s

case in demonstrating that there was reasonable and probable cause to continue to

detain the Claimant after the arrest. Based on PC Williams own evidence he did not

inform the Claimant of the particulars of the firearm related offence he was arrested

for; there was no evidence that any officer had informed the Claimant, prior to the

Claimant’s attorney at law indicating to him about the request for the interview by the

Homicide Bureau, that he was arrested in connection with any particular offence; and

PC Williams did not take any steps beyond Tuesday 17 October 2017 to ensure that it

was brought to Ag Insp Vincent’s attention that the Claimant was in custody. It is

reasonable to conclude that no steps were taken on the day following the Claimant’s

arrest which was the Wednesday 18 October 2017 as there was no credible evidence

from any of the Defendant’s witnesses of any action being taken to further the

investigation on this day.

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76. In my opinion, the total weight of the evidence on behalf of the Defendant was that

the officers had absolutely no regard in advancing any alleged investigation with any

degree of urgency while the Claimant was being detained and deprived of his liberty.

Indeed the vagueness of Ag Insp Vincent’s evidence summed up the laissez faire

approach by the officers in pursuing the investigation of the matter against the

Claimant while he was arrested.

77. For these reasons, I have concluded that there was no reasonable and probable cause

to arrest and detain the Claimant.

IS THE CLAIMANT ENTITLED TO DAMAGES AND IF SO WHAT IS THE QUANTUM?

78. The Claimant made a claim for general damages for his wrongful detention for a total

of one hundred and six hours and fifteen minutes for the period midnight Monday 16

October 2017 to 10:15 am on Friday 20 October 2017. He also seeks an uplift for

aggravated damages and exemplary damages.

79. It was not in dispute that the Claimant was released by the police on Friday 20 October

2017 at approximately 10:15 am. There is some conflict on the approximate time of

the Claimant’s arrest. The Claimant pleaded and stated in his witness statement that

that he was arrested approximately at midnight on Monday 16 October 2017. In cross

examination the Claimant testified that he was walking through a track in Sea Lots on

Monday night, between the hours of 10:00 and 11:00pm, when he was apprehended

and he was arrested at midnight.

80. PC Williams stated in his witness statement that he arrested the Claimant while he

was on patrol between 1:00 am and 5:00 am on Tuesday 17 October 2017. The Station

Diary Extract recorded that PC Williams saw the Claimant while on patrol at around

2:25 am Tuesday 17 October 2017. In cross examination PC Williams testified that he

questioned the Claimant around 2:25 am and he was taken back to the police station

and placed in a cell approximately 2:48 am.

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81. In my opinion, the Claimant’s version is more probable as his evidence was consistent

and unshaken in cross examination. It is also more probable that by the time the

Claimant was stopped at around midnight, he was arrested, taken to the police

station, questioned, searched and placed in a cell it was approximately 2:40 am, which

was the time the notation was entered in the Station Diary.

82. Having found that the Defendant failed to discharge the burden that the Claimant’s

arrest and detention was lawful, it follows that the period of unlawful detention is

approximately three and one half (3 ½) days and not one hundred and six (106) hours

and fifteen (15) minutes as claimed by the Claimant.

83. In a claim for false imprisonment, the Claimant is entitled to recover general damages

for the imprisonment and any physical or mental injury, which results directly from it

as well as damages for the loss of liberty itself, should reflect the length of the unlawful

detention17.

84. Moosai J (as he then was) in Kamal Samdath Ramsaran v Romiel Rush and the

Attorney General18 as follows :

“The principal heads of damage for false imprisonment would appear to be the

injury, that is, the loss of time considered primarily from a non-pecuniary

viewpoint, and the injury to feelings, that is, the indignity, mental suffering,

disgrace and humiliation, with any attendant loss of social status. Also damages

may be given for any injury to reputation, for as Lawrence LJ said in Walter v.

Attools (1944) 61 TLR 39, 40, “a false imprisonment does not merely affect a

man’s liberty; it also affects his reputation.”

85. In awarding general damages, the Court can award aggravated damages where there

are factors, which can justify an uplift in the form of an award for aggravated damages.

17 Halsbury’s Laws of England Tort Vol. 97 (2015) paragraph 556 18 H.C.A. No. S-1597/86

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In Bernard v Quashie19, it was held that a single figure is awarded for all heads of

compensatory damage, including aggravated damages. Lord Wolf in Thompson v

Commissioner of Police of the Metropolis20 in giving the judgment of the court stated

at page 516:

“Such damages can be awarded where there are aggravating features about the

case which would result in the Plaintiff not receiving sufficient compensation for

the injury suffered if the award were restricted to a basic award. Aggravating

features can include humiliating circumstances at the time of arrest or the

prosecution which shows that they behaved in a high handed, insulting, malicious

or oppressive manner either in relation to the arrest or imprisonment or in

conducting the prosecution.”

86. The Claimant stated in his witness statement that at the time of his arrest and on the

way to the police station he was very confused at what was happening and he was

fearful to question the police and soldiers as none of them asked his name, address,

date of birth. At the police station, for the first time he was asked his name and age

by one of the police officers. He told the officer his name and that he was 17 years old

but the police officers never asked him for a contact number for his family members

and they did not contact his family members except for the day he was released.

87. The Claimant also stated in his witness statement that he was placed into a cell, which

he shared with adult males for the first 72 hours. The cell where he stayed for the

entirety of his detention had a very foul stench, was without proper ventilation and

was not cleaned. It was filled with empty bottles and garbage. He also stated that there

was nothing for him to sleep on so he slept on a piece of dirty foam spread across the

floor with the other prisoners in the cell. Whenever he wanted to use the toilet, he

would always have a long wait, as the police officers would not attend to his request

in a timely manner.

19 Civ App. No. 159 of 1992, at page 9 20 [1998] QB 498

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88. The Claimant stated that he had visits from his Attorneys at law but the only

information he got was that he was locked up for enquiries, that police officers from

the Homicide Bureau wanted to interview him and that he would be taken to the Four

Roads Police Station for this interview. He was given this information on the 17

October 2017 by police officers and later by one of his attorneys at law. He said that

after he was informed that he was free to leave the police station on the 20 October

2017, he was allowed a telephone call, and he gave a female police officer his cousin,

Mr Williams number to arrange for him to pick him up.

89. In cross examination the Claimant stated that he had access to his attorneys at law

whom he met with while he was detained at the police station. He confirmed he was

allowed to make a call after he was informed he could leave and that a police officer

made the call. He confirmed this was the only/first time he gave the phone number to

the police.

90. None of the witnesses for the Defendant gave any evidence on the conditions of the

cell where the Claimant was kept. In the absence of any evidence challenging the

Claimant’s version, I accept his evidence on the conditions of the cell where he was

kept for the 3½ days he was in custody. Based on the Claimant’s evidence I also found

that he had access to his attorney at law. It was also more probable that his attorney

at law was contacted by a family member of the Claimant as it was not in dispute that

the Claimant’s grandfather made the habeas application on Wednesday 19 October

2017.

91. It was submitted on behalf of the Claimant that an appropriate range in award for

general damages including the uplift for aggravating damages is between $100,000.00

to $140,000.00. The Claimant relied on the learning in the local judgments of

Trishuana Scarlett v The Attorney General of Trinidad and Tobago21; Ricardo Jack v

The Attorney General of Trinidad and Tobago22 and Peter Griffith and The Attorney

General of Trinidad and Tobago23; Charran Francis v The Attorney General of

21 CV 2016-03548 22 CV 2014-02841 23 CV 2014-02842

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Trinidad and Tobago24; Azard Ali v The Attorney General of Trinidad and Tobago25;

Ricardo Luke Fraser v The Attorney General of Trinidad and Tobago26 ; and Kyle

Nero v The Attorney General of Trinidad and Tobago27.

92. Counsel for the Defendant submitted that a more appropriate range for an award of

general damages for the detention of the Claimant for a period of eight-two (82) hours

and fifteen (15) minutes is between $45,000.00 and $90,000.00. The Defendant relied

on the learning in Ricardo Luke Fraser, Kyle Nero, Kevin Stuart, Martin Permell v the

Attorney General of Trinidad and Tobago28 and Indra Samuel v PC Ali and The

Attorney General of Trinidad and Tobago29.

93. In deciding the appropriate award of general damages, in addition to the evidence, I

considered that the following more recent judicial trends are relevant:

(a) Anil Roopnarine v The Attorney-General of Trinidad and Tobago30 .The

Claimant sued for, inter alia, unlawful arrest and false imprisonment.

There was no malicious prosecution. The Court found that the time which

he spent in custody was excessive, by 2 ½ days. On the 3 February 2017,

he was awarded $50,000.00 in general damages.

(b) The Attorney-General of Trinidad and Tobago v Kevin Stuart31.The

Claimant sued for wrongful arrest, false imprisonment and malicious

prosecution. His claim for malicious prosecution failed on appeal, but the

claim for false imprisonment was upheld, for a period of 2 days. On the 25

July 2017, he was awarded $50,000.00 in general damages.

(c) Martin Permell v the Attorney General of Trinidad and Tobago. The

Claimant was arrested at approximately 11:30 pm on Friday 6 January

24 HCA 513 of 2003 25 CV 2012-04736 26 CV 2014-03967 27 CV 2017-02395 28 CV2017-02478 29 CV2014-00608 30 CV 2013-04439 31 Civ Appeal 162/15

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2015 and was subsequently released without charge, on Tuesday, 20

January 2015. He was detained for approximately 92 hours or a little less

than 4 days. His detention was not justified and there was no explanation

as to why identification parade took so long to be conducted. On the 13

December 2018, the Claimant was awarded $60,000.00 in general

damages.

(d) Kyle Nero v The Attorney General of Trinidad and Tobago. The Claimant

was arrested at his home by police officers who entered without producing

a warrant and not identifying themselves. He was taken to the San Juan

Police Station where he remained in a police vehicle whilst two (2) of the

police officers went into the building. At the police station, the Claimant

was informed by one Sgt Mohammed that he was there concerning a

robbery and shooting in the Chaguanas area, which the Claimant denied.

The Claimant was placed into a cell where he slept for the entirety of his

duration on a cold and hard floor. After two days of detention, the

claimant was allowed to see an attorney and he participated in an

interview in which he gave an exculpatory statement. The Claimant was

returned to his cell where he remained for a further two (2) days before

being released without charge. On the 10 April 2019, the court found the

period of unlawful detention to have been half an hour plus 2 ½ days for

which the Claimant was awarded the sum of $75,000.00 inclusive of an

uplift for aggravation and an award of exemplary damages in the sum of

$15,000.00.

(e) Miguel Benoit v PC Keston Hanooman and ors. The Claimant was charged

with the offences of escaping lawful custody, throwing missiles, using

obscene language and possession of a weapon. After attending court

several times over the course of two years, the matter against the

Claimant was dismissed for want of prosecution. The Claimant sought

damages for unlawful arrest, false imprisonment and malicious

prosecution. In October 2019, the Court awarded the Claimant damages

in the sum of $75,000.00 inclusive of an uplift for aggravated damages for

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the period of 73 hours false imprisonment. No award of exemplary

damages was made.

94. In the instant matter, I am of the view that there were aggravating factors, which

warrant an uplift in the award for the general damages. In my opinion the aggravating

factors were: he was placed into a cell which bore a foul stench, was filled with empty

bottles and garbage and without proper ventilation; there was no implement for

sleeping and the Claimant slept on a dirty piece of foam spread across the floor which

he shared with the other prisoners in the cell; the cell was shared with persons of

presumed criminal character; he had to correspond his need to utilise the toilet to the

availability of police officers for lengthy periods; and the Claimant suffered trauma at

being in such a situation for the first time and facing the prospect of permanent

deprivation of liberty for a serious offence in which he bore no involvement.

95. Given the period of detention and the aforesaid aggravating factors a reasonable

range for award for general damages, which includes an uplift for the aggravating

factors, is between $75,000.00 and $90,000.00. I have decided to award the Claimant

the sum of $80,000.00, which includes an uplift for aggravated damages.

96. Exemplary damages may be awarded where there is the presence of outrageous

conduct disclosing malice, fraud, insolence and cruelty. In Rookes v Barnard,32 Lord

Devlin stated that exemplary damages are different from ordinary damages and will

usually be applied –

(i) where there is oppressive, arbitrary or unconstitutional conduct by

servants of government;

(ii) where the defendant’s conduct had been calculated to make a profit;

and

(iii) where it was statutorily authorised.

32 [1964] AC 1129

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97. The function of exemplary damages is not to compensate but to punish and deter and

that such an award can appropriately be given where there is oppressive, arbitrary or

unconstitutional action by servants of the government. Lord Carswell in the Privy

Council case of Takitota v The Attorney General of Bahamas33 stated that, “[T]he

awards of exemplary damages are a common law head of damages, the object of

which is to punish the defendant for outrageous behaviour and deter him and others

from repeating it ...” .

98. In computing the award for exemplary damages there are several criteria, which the

court should take into account. Lord Devlin in Rookes v Barnard set it out as follows:

(i) A plaintiff cannot recover exemplary damages unless he is the victim of the

punishable behaviour;

(ii) An award of exemplary damages should be moderate; and

(iii) Awards of exemplary damages should be considered in light of the means

of the parties.

99. In addition to the three criteria set out by Lord Devlin the learned authors of McGregor

on Damages34 set out additional criteria as:

(i) The conduct of the parties;

(ii) The relevance of the amount awarded as compensation;

(iii) The relevance of any criminal penalty;

(iv) The position with joint wrongdoers; and

(v) The position with multiple claimants.

100. It was argued on behalf of the Claimant that an award should be made for exemplary

damages given the conduct of PC Williams and the other officers concerning the

Claimant’s matter. It was also argued that a reasonable range for exemplary damages

in the instant matter is the sum of $15,000.00 to $25,000.00.

33 P.C.A No. 71 of 2007 34 19th Edition at paragraphs 13-033 to 13-044

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101. It was submitted on behalf of the Defendant that the circumstances of the instant

matter do not warrant an award of exemplary damages as the Claimant was allowed

to choose a legal representative who visited him during his detention at the police

station. Therefore, it cannot be said that PC Williams acted in a high handed, reckless

or oppressive manner, which would justify an award of exemplary damages.

102. Having accepted the Claimant’s version of events, I am of the opinion that an award

for exemplary damages is appropriate in the instant case as the conduct of the police

officers was not simply laissez faire but one where there was the flagrant disregard for

the deprivation of the Claimant’s liberty for approximately three and one half (3 ½)

days which cannot be condoned by this Court.

103. In determining the sum to award as exemplary damages the Court of Appeal in Darrell

Wade v The Attorney General of Trinidad and Tobago35 stated at paragraph 18 that:

“... the method of arriving at an award of exemplary damages ought not to be

much different than the method used to arrive at an award for compensatory

damages. The figure arrived at should be one which in the mind of the assessor

satisfies the criteria for exemplary damages, aligns with awards in comparable

cases and meets the justice of the case.”

104. In my opinion given the judicial trends in the cases of Trishauna Scarlett where a sum

of $10,000.00 was awarded for exemplary damages in June 2018; the sum of

$15,000.00 was awarded as exemplary damages in Kyle Nero on the 10 April 2019, a

reasonable range for exemplary damages is between $10,000.00 and $15,000.00. In

the given circumstances, a reasonable award as exemplary damages is $10,000.00.

INTEREST

105. The award of interest on damages is discretionary pursuant to section 25 of the

Supreme Court of Judicature Act36. The Court of Appeal in The Attorney General of

35 Civ.App.172 of 2012 36 Chapter 4:01

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Trinidad and Tobago v. Fitzroy Brown et al37 reduced interest awarded for false

imprisonment, where allegations of assault were made, at the rate which is payable

on money in court placed on a short term investment account. As such, bearing in

mind that monies are placed in the Unit Trust account and since this was not a case

where the commercial lending rates was applicable, the Court of Appeal reduced the

interest awarded from 9% to 2.5% per annum.

106. Therefore, interest on general damages in the instant matter is awarded at the rate of

2.5% per annum from the date of service of the Claim Form i.e. 26 April 2018 to the

date of judgment.

COSTS

107. I have decided that costs must follow the event since there are no exceptional

circumstances to depart from the general rule.

ORDER

108. Judgment for the Claimant.

109. The Defendant to pay the Claimant general damages for wrongful arrest and his

detention for approximately three and one half (3 ½) days which includes an uplift for

aggravated damages in the sum of $80,000.00 with interest at the rate of 2.5 % per

annum from the date of service of the Claim Form i.e. 26 April 2018 to the date of

judgment.

110. The Defendant to pay the Claimant the sum of $10,000.00 as exemplary damages.

111. The Defendant to pay the Claimant’s prescribed costs in the sum of $22,000.00

pursuant to Rule 67.5 Civil Proceedings Rule 1998 as Amended.

Margaret Y Mohammed

Judge

37 CA 251 of 2012

THE REPUBLIC OF TRINIDAD AND TOBAGO IN THE HIGH COURT...

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